Ruling of the Tribunal on an application by the Defendant to strike out sections of the particulars of claim lodged by the Claimant on 18 June 2010. The strike out application related to a claim for compensation / restitution and a claim for exemplary damages.
The Tribunal found that, in respect of compensatory damages arising from alleged loss of profits regarding the supply of water by the Claimant to Shotton Paper, in so far as the claim as pleaded by the Claimant relied on a finding that the sums paid by the Claimant under the Second Bulk Supply Agreement were excessive because the costs attributed to providing partial treatment and distribution under that Agreement were the same as those which generated the First Access Price, there were no grounds for the Claimant to pursue that claim in the context of the proceedings. This was due to the fact that the Tribunal had made no previous finding expressly or by necessary implication as to whether the price under the Second Bulk Supply Agreement was an abuse of a dominant position.
The Tribunal rejected the application to strike out the claim for damages in respect of supply to Corus Shotton. The Tribunal further rejected the Defendant’s challenge based on the alleged temporal aspect of the infringement.
In respect of the Defendant’s application to strike out the claim for exemplary damages, the Tribunal decided that the claim was not prevented by the judgment of Lewison J in Devenish Nutrition v Sanofi-Aventis [2007] EWHC 2394 (Ch), as no fine had been imposed on the Defendant and there was no practical possibility of any fine being imposed by any enforcement body in the future. There was therefore no danger of double jeopardy.
